Durand et al v. Residential Credit Solutions, Inc. et al

Filing 84

ORDER granting 69 Motion for Summary Judgment (Written Opinion). Signed by Judge Susan Richard Nelson on 5/30/2017. (SMD)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Scott Durand and The Estate and Trust of
Mary Idella Durand,

Case No. 15-cv-00126 (SRN/SER)

Plaintiffs,
v.
Bank of America, Countrywide Home
Loans, Residential Credit Solutions, Inc.,
and The Bank of New York as trustee for
the Certificateholders of CWMBS, Inc.
CHL Mortgage Pass-Through Trust 200720, Mortgage Pass-Through Certificates,
Series 2007-20,

MEMORANDUM OPINION
AND ORDER

Defendants.

Todd Murray, Friedman Iverson, 509 First Avenue Northeast, Suite 2, Minneapolis, MN
55413, for Plaintiffs.
Curt N. Trisko, The Academy Law Group, P.A., 25 Dale Street North, St. Paul, MN
55102; Jared M. Goerlitz, PFB LAW, P.A., 55 East Fifth Street, Suite 800, St. paul, MN
55101; Keith S. Anderson, Bradley Arant Boult Cummings LLP, One Federal Place,
1819 Fifth Avenue North, Birmingham, AL 35203; Mark G. Shroeder, Briggs and
Morgan, P.A., 2200 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402, for
Defendants.

SUSAN RICHARD NELSON, United States District Judge
This matter is before the Court on Defendants’ Joint Motion for Summary Judgment
[Doc. No. 69]. For the reasons stated below, Defendants’ Motion is granted.

I.

BACKGROUND
A. Loan and Mortgage Origination
This lawsuit arises from the circumstances surrounding a loan purportedly obtained

by Mary Idella Durand (“Mary”) on August 3, 2007 and the related mortgage (the
“Mortgage”) placed on her home in Burnsville, Minnesota (the “Property”). The Mortgage
identified the Property as collateral for a promissory note in the amount of $105,000.00 (the
“Note”). (Decl. of Curt Trisko (“Trisko Decl.”) [Doc. No. 72], Ex. A; Decl. of Jennifer
Moure (“Moure Decl.”) [Doc. No. 73], Ex. 1.) Of the amount borrowed, $54,257.38 was
used to pay off a previous mortgage on the Property1 and $47,106.26 was available for
direct disbursal to the borrower. (Aff. of Todd Murray (“Murray Aff.) [Doc. No. 77], Ex. 9
at 34.) According to a disbursal authorization form, purportedly bearing Mary’s signature,
the funds were disbursed via overnight courier to “JD” at an address in Apple Valley,
Minnesota. (Moure Decl., Ex. 2 at 9; Murray Aff., Ex. 3 at 19.) The initials JD apparently
signified Jeff Durand (“Jeff”), one of Mary’s four children. (See Am. Compl. at ¶¶ 11, 2027 [Doc. No. 26].)
The Mortgage was delivered to Mortgage Electronic Registration Systems, Inc.
(“MERS”) as nominee for Defendant Countrywide Home Loans (“Countrywide”). (Trisko
Decl., Ex. A; Moure Decl., Ex. 1.) Defendant Bank of America, N.A. (“BANA”) is the
successor-by-merger to Countrywide and was a servicer of the Mortgage. Defendant
Residential Credit Solutions, Inc. (“RCS”) later obtained the Mortgage and serviced it until

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Prior to the execution of the Mortgage in question, the Property was subject to another
mortgage. (Aff. of Todd Murray [Doc. No. 77], Ex. 4 at 22).
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March 1, 2016. (Aff. of Marlon Frazier (“Frazier Aff.”) at 1 [Doc. No. 74].) On April 5,
2012, the Mortgage was assigned to Defendant Bank of New York Mellon fka The Bank of
New York (“BNYM”), as trustee for the Certificateholders of CWMBS, Inc. CHL
Mortgage Pass-Through Trust 2007-20, Mortgage Pass-through Certificates, Series 2007-20
(“CWMBS Trust”). (Trisko Decl., Exs. B-1, B-2.) CWMBS Trust, with BYNM serving as
trustee, was the last holder of the Mortgage and is the current owner of the Property. (See
Aff. of Jared M. Goerlitz (“Goerlitz Aff.”) [Doc. No. 5], Exs. 4, 5, 7, 8, 10.)
B. Attempted Rescission of the Mortgage
Plaintiff Scott Sponslier Durand 2 (“Durand”) is another of Mary’s children. (Am.
Compl. at ¶ 11 [Doc. No. 26].) In September 2009, more than two years after the closing,
Durand drafted a letter to BANA on behalf of his mother (the “Rescission Notice”). (First
Aff. of Scott Durand (“First Durand Aff.”) [Doc. No. 78-1], Ex. A.) The Rescission Notice
alleged that the Mortgage was the result of a fraud wherein Jeff, by virtue of a “relationship”
he had with BANA/Countrywide, used the Property as collateral for the Note without
Mary’s knowledge or consent. (Id.) Notably, Jeff is not a Defendant in this case.
The Rescission Notice also purported to assert Mary’s right to rescind the Mortgage.
(Id.) It did not bear Mary’s signature, or any other signature, but stated that it was “[d]rafted
by Scott Durand.” (Id.) There is no evidence, other than Durand’s assertion, that the
Rescission Notice was in fact sent to BANA.

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Plaintiff is also known as David Scott Durand. (Trisko Decl., Ex. D at 44.)
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C. The Trust Agreement and Will
On December 16, 2009—two years after the execution of the Mortgage and shortly
after the Rescission Notice was sent—Mary executed a trust agreement (the “Trust
Agreement”). (First Durand Aff., Ex. B.) In it, Mary acknowledged the Mortgage, noting “I
have lent to my son, Jeffrey Durand, the sum of $105,000, which has been obtained by
placing a mortgage on the homestead.” (Id. at 6.) The document also reflects Mary’s
understanding that Jeff was responsible for paying the Mortgage’s monthly statements. The
agreement states that “[i]f Jeffrey fails to pay the monthly payments on the mortgage, the
balance that he owes to me (represented by the mortgage balance) shall be immediately due
and payable to the trust.” (Id.) Durand believes that the Trust Agreement was binding and
legally enforceable. (First Durand Aff. at ¶ 21.)
Under the terms of the Trust Agreement, Durand held the right to continue residing
at the Property after Mary’s death, so long as he paid the utilities and insurance and
performed necessary maintenance and repairs. (Id.) Upon the sale of the Property, the Trust
Agreement directed that the sale proceeds be divided equally among Mary’s four children.
(Id. at 6-7.) If the balance owed on the Mortgage at the time of the sale was greater than one
quarter of the sale price, Jeff was to receive nothing and pay to the Trust the difference
between the Mortgage balance and one quarter of the sale price. (Id. at 7.) Otherwise, Jeff’s
portion of the sale proceeds was to be decreased by the amount remaining on the Mortgage.
(Id.)
The Trust Agreement appointed Mary’s daughter, Kim Durand (“Kim”), as trustee.
(Id. at 8.) In the event that Kim was unwilling or unable to serve as trustee, the Trust
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Agreement designated Durand as trustee. (Id.) Mary also executed a last will and testament
on December 16, 2009 (the “Will”). (Trisko Decl., Ex. C). Mary passed away in 2012.
D. The Attempted Modification, Foreclosure, and Postponement
As a result of a default on the Mortgage, foreclosure proceedings were initiated
against the Property in March of 2014. (Goerlitz Aff., Ex. 8 at 3.) On April 18, 2014,
Durand was personally served with a Notice of Mortgage Foreclosure Sale dated March 24,
2014 (the “Foreclosure Notice”). (Id., Ex. 10 at 8.) The Foreclosure Notice was also
published in local newspapers from April 6, 2014 through May 11, 2014. (Id. at 2.) At the
time Durand was served, the foreclosure sale date was set for May 27, 2014. (Id. at 10.)
RCS’s loan servicing records reflect that after Durand was served with the
Foreclosure Notice, he contacted RCS to inquire about the possibility of a mortgage
modification. (Frazier Aff., Ex. 1 at 4.) On April 14, 2014, Durand requested a financial
package for a loan modification and the next day RCS mailed the requested materials to
him. (Id.) On a phone call with RCS, Durand acknowledged receipt of the financial
package. (Id. at 5.) Durand notified RCS that he intended to apply for a mortgage
modification and submit the required documentation. (Id. at 6.) However, the application
RCS received on May 13, 2014 was incomplete. (See id.) RCS’s records reflect that they
attempted to contact Durand regarding the missing documentation, but ultimately never
received the paperwork necessary to process Durand’s requested mortgage modification.
(See id. at 6-17.)
Meanwhile, acting on behalf of the Trust, Kim filed an Affidavit of Postponement,
dated May 8, 2014 and recorded it in Dakota County on May 12, 2014, thereby postponing
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the foreclosure sale until October 27, 2014. (Trisko Decl., Ex. G at 1-2; Frazier Aff., Ex. 1
at 7.) Sometime in 2014, Durand obtained legal assistance from Lawrence Maloney, an
attorney and foreclosure prevention counselor. Mr. Maloney sent a letter to BANA, dated
September 12, 2014, stating that he was “investigating apparent or possible impropriety in
connection with the loan,” requesting certain documentation from BANA, and requesting
that BANA investigate the purported fraud by Jeff. (Trisko Decl., Ex. F at 83-84.) There is
no response from BANA in the record.
Durand filed for Chapter 13 bankruptcy on October 24, 2014. (Trisko Decl., Exs. H,
I.) As a result, the foreclosure sale was postponed until November 18, 2014. (Frazier Aff.,
Ex. 1 at 13.) The sale was later postponed to January 6, 2015. (Frazier Aff., Ex. 1 at 17;
Compl. [Doc. No. 1-1].) BNYM ultimately bought the Property at the foreclosure sale and
held it subject to the statutorily mandated five week redemption period. (Goerlitz Aff., Ex.
10 at 19-20.) However, Durand was unable to raise the funds necessary to redeem the
Property and the sale was finalized.
E. This Lawsuit
Durand initiated this lawsuit pro se in Minnesota state court on November 17,
2014—asserting numerous claims related to the execution and validity of the Mortgage—on
behalf of himself and the “Trust of Mary Idella Durand.”3 (Compl. at 1 [Doc. No. 1-1].)

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Mary’s Trust designates Kim as the trustee. (First Durand Aff., Ex. B.) Only in the
event that Kim is unwilling or unable to serve as trustee is Durand designated to fill that
role. (Id.) The record does not reflect any evidence of Kim’s unwillingness or inability to
serve as trustee, nor Durand’s proper assumption of that role. Yet, Durand brings suit on
behalf of himself and the Trust, claiming that he is acting as the trustee of the Trust. (See
Am. Compl.; Trisko Decl., Ex. D at 45.) Ultimately, the Court need not decide whether
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BANA removed the action to this Court on January 20, 2015. (Notice of Removal [Doc.
No. 1-5].) Defendants then moved to dismiss the suit. (Defs.’ Joint Mot. to Dismiss [Doc.
No. 3].) However, pursuant to a joint stipulation, several of Plaintiffs’ original claims were
dismissed with prejudice and Defendants withdrew their Joint Motion to Dismiss based on
Durand’s agreement to amend the Complaint. (See Doc. Nos. 21, 24, 25.)
While this suit was pending before the Court, Durand filed another complaint pro se
in Minnesota state court on June 24, 2015. (See D. Minn. case no. 15-cv-3721 [Doc. No. 11].) Substantively, the allegations in the second case are identical to those in the first case,
except that the second case omits Count IV and names RCS as the sole defendant. RCS
subsequently removed the second case to federal court and it was consolidated with this
case. (See Consolidation Order [Doc. No. 55].)
After securing counsel, Durand filed his Amended Complaint on July 14, 2015. (See
Am. Compl.) In it, he asserts six claims: (1) mortgage rescission pursuant to 15 U.S.C. §
1635 (Count I); (2) quiet title (Count II); (3) a request for a writ of mandamus directing the
registrar of titles to destroy any relevant encumbrance on the Property (otherwise known as
“expungement”) (Count III); (4) “mortgage fraud” by Countrywide (Count IV); (5)
negligent misrepresentation by BANA (Count V); and (6) fraud by RCS (Count VI). (See
Am. Compl. at ¶¶ 48-93.)
Defendants now move for summary judgment on all of Durand’s claims and filed
briefing in support of that motion (See Defs.’ Joint Mot. for Summ. J.; Defs.’ Mem. in Supp.

Durand is properly representing the Trust because the claims fail as a matter of law,
regardless of the party asserting them.
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of Summ. J. (“Defs.’ Mem. in Supp.”) [Doc. No. 71]; Defs.’ Reply Mem. in Supp. (“Defs.’
Reply”) [Doc. No. 80].) Durand opposes Defendants’ Motion. (See Pls.’ Mem. in Opp.
[Doc. No. 76].)
II.

DISCUSSION
A. Potential Waiver of Certain Claims
Defendants note that Durand failed to address their challenges to Counts IV-VI and

argue that those claims should be dismissed as a result. (Defs.’ Reply at 2 n.2.) A litigant’s
failure to address challenges to the merits of a claim in his/her response brief amounts to a
concession and dismissal is appropriate. Satcher v. Univ. of Arkansas at Pine Bluff Bd. of
Trustees, 558 F.3d 731, 735 (8th Cir. 2009) (“failure to oppose a basis for summary
judgment constitutes waiver of that argument”); Siepel v. Bank of Am., N.A., 239 F.R.D. 558
(E.D. Mo. 2006), aff’d, 526 F.3d 1122 (8th Cir. 2008). Durand’s failure to address the
challenges to Counts IV-VI would warrant dismissing those claims, but in the interest of
fairness—and because it does not alter the result—the Court addresses the merits of those
claims.
B. Legal Standard
Summary judgment is proper if, drawing all reasonable inferences in favor of the
non-moving party, there is no genuine issue as to any material fact and the moving party
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50
(1986); Morriss v. BNSF Ry. Co., 817 F.3d 1104, 1107 (8th Cir. 2016). “Summary
judgment procedure is properly regarded not as a disfavored procedural shortcut, but
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rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure
the just, speedy, and inexpensive determination of every action.’” Celotex, 477 U.S. at
327 (quoting Fed. R. Civ. P. 1).
The party moving for summary judgment bears the burden of showing that the
material facts in the case are undisputed. Id. at 323. However, a party opposing summary
judgment “‘may not rest upon the mere allegation or denials of his pleading, but ... must
set forth specific facts showing that there is a genuine issue for trial,’ and ‘must present
affirmative evidence in order to defeat a properly supported motion for summary
judgment.’” Ingrassia v. Schafer, 825 F.3d 891, 896 (8th Cir. 2016) (quoting Anderson,
477 U.S. at 256-57). “[T]he nonmoving party must ‘do more than simply show that there
is some metaphysical doubt as to the material facts.’” Conseco Life Ins. Co. v. Williams,
620 F.3d 902, 910 (8th Cir. 2010) (quoting Matsushita Elec. Indus. Co., v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986)). Self-serving affidavits alone cannot defeat a properly
supported motion for summary judgment. Conolly v. Clark, 457 F.3d 872, 876 (8th Cir.
2006). Rather, a plaintiff “must substantiate [self-serving] allegations with sufficient
probative evidence that would permit a finding in the plaintiff’s favor.” Davidson &
Assocs. v. Jung, 422 F.3d 630, 638 (8th Cir. 2005). Summary judgment is also proper
where the non-moving party fails “‘to make a showing sufficient to establish the
existence of an element essential to that party’s case . . . .’” Walz v. Ameriprise Fin., Inc.,
779 F.3d 842, 844 (8th Cir. 2015) (quoting Celotex, 477 U.S. at 322).

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C. Quiet Title, Expungement, and Mortgage Fraud—Counts II, III, IV
Durand’s claims for quiet title, expungement, and “mortgage fraud” are each
premised on his allegation that Jeff—with the help of Countrywide—obtained the Note
and Mortgage through forgery and without Mary’s consent. (See Am. Compl. at ¶¶ 20-26,
55-79; First Durand Aff., Ex. A.) Durand contends that Countrywide participated in this
fraud because it stood to acquire the Property—which was worth twice as much as the
Note—if there was a default on the Mortgage. (Am. Compl. at ¶¶ 23, 75.) In essence,
Durand argues that because the Note and Mortgage are invalid, he is entitled to “relief” in
the form of quiet title to the Property and expungement of the Mortgage. (See Am.
Compl. at ¶¶ 55-69.)
Durand titles Count IV as a claim for “mortgage fraud” and his Amended
Complaint contains numerous allegations of forgery. (See Am. Compl. at ¶¶ 31, 59, 7079.) However, Minnesota’s criminal statutes for residential mortgage fraud and forgery
do not provide private causes of action. See Minn. Stat. §§ 609.63 (forgery), 609.822
(residential mortgage fraud); McDonald v. Allina Health Sys., No. A15-0413, 2015 WL
6442585, at *3 (Minn. Ct. App. Oct. 26, 2015) (dismissing a plaintiff’s civil claim for
forgery because the criminal statute did not provide for a private cause of action). As best
the Court can tell, Durand’s claim is that the Mortgage was the product of common law
fraud by Jeff and Countrywide and is thus invalid. (See Am. Compl. at ¶¶ 20-23, 70-79.)
In opposing Defendants’ Motion, Durand contends that there are “at least four”
disputed facts regarding the Mortgage and its supporting documents that allow his fraud
claim to survive. (See Pls.’ Mem. in Opp. at 5-8.) First, Durand argues that Mary’s
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“health had deteriorated so much by 2007 that she could not have attended a real estate
closing.” (Id. at 6.) Second, he asserts that when the Mortgage was signed in 2007, Mary
could not hold a pen or sign her name legibly. (Id.) Third, Durand highlights the fact that
the notarized affidavit of identification contained in the closing documents misstates
Mary’s full name and lists the incorrect year of her birth. (Id. at 6-7.) Fourth, he points to
a “series of obvious errors”—such as misstatements about Mary’s race and income—in
the Mortgage application and supporting documents as evidence that they were not
completed by Mary. (Id.)
To support his contentions, Durand cites the documents themselves and an
affidavit he submitted attesting to Mary’s health, full name, and other information he
believes was misstated in Mortgage. (See id. at 1-8; First Durand Aff.) However, Durand
did not produce any evidence—such as Mary’s medical records, bank statements, or other
documentation—that would support his allegations. Durand also admits that he has no
personal knowledge of the circumstances surrounding the Mortgage’s origination.
(Trisko Decl., Ex. D at 43-44.)
To prevail on a claim of common law fraud, a plaintiff must prove:
(1) a false representation of a past or existing material fact susceptible of
knowledge; (2) made with knowledge of the falsity of the representation or
made without knowing whether it was true or false; (3) with the intention to
induce action in reliance thereon; (4) that the representation caused action
in reliance thereon; and (5) pecuniary damages as a result of the reliance.
Fraud may also be established by concealment of the truth.
U.S. Bank N.A. v. Cold Spring Granite Co., 802 N.W.2d 363, 373 (Minn. 2011).
Importantly here, fraud is an intentional tort and thus “scienter is an essential element.”
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Florenzano v. Olson, 387 N.W.2d 168, 173 (Minn. 1986). “Fraudulent intent is, in
essence, dishonesty or bad faith. What the misrepresenter knows or believes is the key to
proof of intent.” Id.
Durand’s fraud claim suffers from at least three fatal flaws. First he presents no
evidence, besides his bald assertions, of Countrywide’s fraudulent intent. Second, there is
no evidence to support many of Durand’s allegations that the information provided in the
Mortgage application was inaccurate and in some instances, the evidence in fact
contradicts these assertions. Third, to the extent any misrepresentations were made in the
course of obtaining the Mortgage and Note, they were apparently made by Jeff (or Mary)
to Countrywide and there is no evidence that Durand or Mary relied—to their
detriment—on any misrepresentation made by Countrywide.
1. Fraudulent Intent
Durand failed to present any evidence of Countrywide’s fraudulent intent beyond
his bald assertions about its motives for issuing the Mortgage. (See Am. Compl. at ¶¶ 7079; First Durand Aff. at ¶¶ 43-46, 52-53.) Those assertions are not enough to withstand
summary judgment. See Ingrassia, 825 F.3d at 896; Conolly, 457 F.3d at 876; Jung, 422
F.3d at 638. Durand also focuses on Jeff’s alleged bad character, his motives for
obtaining the Note and Mortgage, and the misrepresentations he employed to achieve this
end. (See Am. Compl. at ¶¶ 16-17, 20-24, 27, 29, 43.) Jeff is not a Defendant and there is
no basis to impute his alleged fraudulent intent to Countrywide. The lack of any evidence
of fraudulent intent on the part of Countrywide necessitates dismissing Durand’s fraud
claim. See Demerath Land Co. v. Sparr, 48 F.3d 353, 355 (8th Cir. 1995) (“Although it is
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true that in cases where intent is at issue, summary judgment must be granted with
caution, disposition by summary judgment may still be appropriate if the party in
opposition to the motion has adduced no evidence whatsoever of the requisite intent to
defraud.” (quotation marks and citations omitted)); Dunning v. Bush, 536 F.3d 879, 88586 (8th Cir. 2008) (holding that a lack of evidence of fraudulent intent warrants
dismissing fraud claims on summary judgment).
2. Evidence of Inaccuracies
In essence, Durand alleges that Jeff obtained the Mortgage without Mary’s
consent/knowledge in order to benefit himself financially and that Countrywide was
somehow an active participant in this scheme. As described above, Durand claims that
there are numerous inaccuracies in the Mortgage application, which he sees as evidence
that the Mortgage was fraudulently obtained.
Durand presents no evidence in support of some of his claims that information
provided in the Mortgage application was inaccurate. For instance, Durand alleges that
Mary’s income and assets were overstated. (See First Durand Aff. at ¶¶ 30, 35-36; Am.
Compl. at ¶¶ 72, 74.) However, Durand did not provide any evidence, beyond his bare
assertions, of Mary’s actual income and assets in 2007. Similarly, Durand alleges that Mary
was too infirmed to have attended the Mortgage closing or signed the documents, but does
not provide any evidence (e.g., medical records) related to Mary’s condition at the time.
(First Durand Aff. at ¶¶ 23-24, 27, 29; Trisko Decl., Ex. D at 49 (Durand refusing to provide
any of Mary’s medical records in response to Defendants’ document request).) Durand’s
unsupported assertions as to what the facts were are not enough to survive summary
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judgment. See Ingrassia, 825 F.3d at 896; Conolly, 457 F.3d at 876; Jung, 422 F.3d at
638.
On other issues, the evidence directly contradicts Durand’s claims of inaccuracy or
fraudulent behavior. For instance, the Trust Agreement—which Durand himself says was
properly executed by Mary—explicitly acknowledges the Mortgage and the fact that Jeff
benefited from the Note that it secured. This refutes Durand’s claim that the Mortgage
was obtained without Mary’s knowledge or consent. Durand also alleges that the
signatures on the Mortgage documents are not Mary’s because at the time the documents
were signed, Mary was incapable of signing her name due to her various medical
conditions. (First Durand Aff. at ¶ 29.) Besides providing no evidence of Mary’s medical
conditions or when they arose, Durand also offered no evidence of what Mary’s signature
looked like in 2007. However, the title record for the Property contains seven documents
Mary executed between 1973 and 2007, including the Mortgage, each bearing a signature
that appears virtually identical to the others.4 (Trisko Decl., Exs. E-1–E-7).
Perhaps most problematic for Durand is the fact that a notarized Closing
Agent/Notary Public Certification (“Identification Certificate”) accompanies the Mortgage
documents and attests that Mary was the one who signed those documents. (Murray Aff.,
Ex. 5 at 26.) To successfully contest the validity of a notarized signature on a mortgage,
“clear and convincing testimony is required to oppose and overcome the statutory
authentication by which the proof of deeds is established.” Goulet v. Dubreuille, 86 N.W.

4

Notably, Mary’s signature appears to have drastically changed by 2009 when she
executed the Trust Agreement and her Will. (See Trisko Decl., Ex. C at 26-27, 40.)
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779, 780 (Minn. 1901); see Summit Mercantile Co. v. Daigle, 178 N.W. 588, 588 (Minn.
1920) (holding that when a mortgage is “duly acknowledged before a notary public, filed in
the proper office, and recited that it was given as security for the payment of an
indebtedness,” the party seeking invalidation of the mortgage bears the burden of
overcoming the presumption of validity by clear and convincing evidence). The Federal
Rules of Evidence also provide that “[a] document accompanied by a certificate of
acknowledgement that is lawfully executed by a notary public or another officer who is
authorized to take acknowledgments” is self-authenticating. See Fed. R. Evid. 902(8). To
negate the Identification Certificate, Durand bears the burden of proving—by clear and
convincing evidence—that the notary deviated from his obligation under Minnesota law “to
determine, either from personal knowledge or from satisfactory evidence, that the signature
is that of the person appearing before the officer and named therein” or that the notary was
not present when the documents were signed. See Minn. Stat. § 358.42.
In an attempt to meet this burden, Durand highlights two apparent inaccuracies on
the Identification Certificate. First, he points out that Mary’s name was recorded as “Mary
Herrod Durand” instead of “Mary Idella Durand.” (Murray Aff., Ex. 5 at 26; First Durand
Aff. at ¶¶ 35-36.) Herrod was Mary’s maiden name, a fact established by the death
certificate of Mary’s husband. (Trisko Decl., Ex. E-6 at 76.) The Identification Certificate
makes clear that the notary recorded Mary’s name as it appeared on a Minnesota
identification card, but that identification card is not in the record. (See Murray Aff., Ex. 5 at
26.) Durand produced no evidence that Mary did not have a Minnesota identification card
listing her name as “Mary Herrod Durand.”
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Second, Durand points to the incorrect recording of Mary’s birth year as 1929
instead of 1926 on the Identification Certification. (Murray Aff., Ex. 5 at 26; First Durand
Aff. at ¶¶ 35-36.) Defendants argue that this is a typo and not evidence of forgery. (See
Defs.’ Reply at 5-6.) As support for this contention, they note that the month and day of
Mary’s birth were correct on the Identification Certificate. They also observe that each of
the other Mortgage documents that include a date of birth correctly state Mary’s birth year
as 1926.
The minor inconsistencies just discussed do not meet the clear and convincing
standard necessary to overcome the statutory presumption in favor of the notarized
Identification Certificate. Even if they did and the Court refused to consider the
Identification Certificate, Durand’s fraud claim would fail for the other reasons stated in this
Order.
3. Reliance
Finally, Durand failed to present any evidence that—assuming misrepresentations
were made in obtaining the Mortgage—he or Mary relied on those misrepresentations to
their detriment. Whatever misrepresentations Jeff allegedly made in completing the
Mortgage application, he made to Countrywide and not to Mary or Durand. Durand does
not even allege that Countrywide made a misrepresentation on which he or Mary could have
relied. Moreover, there is no evidence of any damage resulting from the misrepresentations
Durand alleges. The Trust Agreement states that the parties got what they bargained for—
namely, Mary received $105,000 in exchange for Countrywide placing a mortgage in that
amount on the Property.
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Durand’s fraud claim in Count IV is dismissed because there is no evidence of
fraudulent intent on the part of Countrywide, the evidence in the record largely contradicts
Durand’s allegations, and there is no sign of detrimental reliance on a misrepresentation
made by Countrywide. Since Durand’s claims for quiet title and expungement in Counts II
and III are premised on the fraud claim, those claims are also dismissed.
D. Rescission of the Mortgage—Count I
Durand further alleges that Countrywide violated the Truth in Lending Act (TILA)
and seeks rescission of the Mortgage pursuant to 15 U.S.C. § 1635. (Am. Compl. at ¶¶
48-54.) The substance of his claim is that Countrywide failed to provide Mary with the
required disclosure regarding rescission and that she effectively rescinded the Mortgage
through the Rescission Notice in 2009. (See id.)
In relevant part, the TILA requires that a lender provide a borrower with a
disclosure explaining that the borrower has three business days from the date the
mortgage is executed or the disclosure delivered—whichever is later—in which he/she
can rescind the mortgage. 15 U.S.C. § 1635(a). A written acknowledgment by the
borrower that he/she received such a disclosure creates a rebuttable presumption that the
disclosure was delivered. 15 U.S.C. § 1635(c). If no disclosure is provided, the borrower
has three years from the date the mortgage is executed in which he/she can rescind. 15
U.S.C. § 1635(f). To exercise the right to rescind, a borrower must provide written notice
to the lender within the applicable rescission period. Jesinoski v. Countrywide Home
Loans, Inc., 135 S. Ct. 790, 792 (2015) (hereinafter, Jesinoski I). If the borrower wishes
to collect damages based on the lender’s failure to act in accordance with a valid
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rescission, he/she must bring suit within one year of the lender receiving the notice of
rescission. 15 U.S.C. §§ 1635(b), 1640(e).
There are two related issues surrounding Durand’s TILA claim. The first is
whether the three day or three year rescission period applied. The second is whether
Durand brought suit to enforce the rescission within the statute of limitations. Since the
Court concludes that the Rescission Note was untimely—and therefore ineffective—it
need not reach the issue of whether Durand brought suit within the statute of limitations.
Defendants argue that Mary was provided with the requisite TILA rescission
disclosure and thus her right to rescind expired three business days after the Mortgage
was executed. (Defs.’ Mem. in Supp. at 13-15.) Defendants produced a certificate,
bearing Mary’s signature and dated August 3, 2007, acknowledging that she received the
TILA rescission disclosures. (Moure Decl., Ex. 6.) Durand contends that Mary was not
provided with the disclosures, that it was actually Jeff who received them and signed for
them, and points to the supposed inaccuracies in the Mortgage documents discussed
above as evidence. (Pls.’ Mem. in Opp. at 10-13.) Thus, Durand argues that Mary had
three years from the execution of the Mortgage in which to rescind and that she did so by
way of the Rescission Notice in 2009. (See id.)
The disclosure acknowledgement bearing Mary’s signature creates a rebuttable
presumption that she was in fact provided with the required disclosures and thus only had
three business days following the execution of the Mortgage in which to rescind. 15
U.S.C. § 1635(a), (c). The question is whether Durand has overcome this presumption by
presenting evidence that she did not in fact receive the disclosures. He has not.
18

Again, Durand’s primary “evidence” is his own self-serving and unsubstantiated
allegations that Mary did not receive the disclosures and that Jeff was the one who
actually signed the Mortgage documents. (Am. Compl. at ¶¶ 25, 48-54.) This is not
enough to withstand summary judgment, let alone overcome the presumption that Mary
was in fact provided with the disclosures. Jesinoski v. Countrywide Home Loans, Inc.,
196 F. Supp. 3d 956, 960 (D. Minn. 2016) (hereinafter, Jesinoski II) (“The only evidence
provided by Plaintiffs to rebut the presumption of receipt [of a TILA rescission
disclosure] is their testimony that they did not receive the correct number of documents.
[T]his Court has consistently held that statements merely contradicting a prior signature
are insufficient to overcome the presumption.”); Keiran v. Home Capital, Inc., No. 10-cv4418 (DSD/JSM), 2015 WL 5123258, at *4 (D. Minn. Sept. 1, 2015) (“the record here is
devoid of any evidence—apart from self-serving affidavit testimony—that the defendants
failed to provide the required number of disclosure statements or otherwise comply with
TILA”). The only other evidence Durand offers are the alleged inaccuracies in the
Mortgage documents. As previously discussed, the evidence does not support some of
Durand’s inaccuracy allegations. Regardless, even considering what inaccuracies the
record does show, the evidence is not enough to overcome the presumption that Mary
was provided with the TILA rescission disclosures.
Since Mary was provided with the disclosures, her rescission period expired three
business days after the Mortgage was executed in August 2007. The Rescission Notice

19

came more than two years after that time and is ineffective as a result. 5 Thus, Durand’s
rescission claim fails as a matter of law.
E. Negligent Misrepresentation by BANA—Count V
Count V states a claim for negligent misrepresentations by BANA. 6 (Am. Comp.
at ¶¶ 80-86.) This claim is predicated on Durand’s assertion that in 2009, sometime after
receiving the Rescission Notice, BANA told Durand that it would refer his fraud
allegations to its fraud department for investigation, but that BANA never conducted any
investigation. 7 (See id. at ¶¶ 34, 40.)
Under Minnesota law, a person makes a negligent misrepresentation when
(1) in the course of his or her business, profession, or employment, or in a
transaction in which he or she has a pecuniary interest, (2) the person
supplies false information for the guidance of others in their business
transactions, (3) another justifiably relies on the information, and (4) the
person making the representation has failed to exercise reasonable care in
obtaining or communicating the information.
5

As Defendants point out, there are considerable admissibility issues related to the
Rescission Notice. (Defs.’ Mem. in Supp. at 3 n.3.) The Rescission Notice is unsigned,
purportedly drafted on Mary’s behalf by Durand, and there is no evidence that it was ever
actually sent to BANA. This raises, at a minimum, issues of hearsay and authenticity.
However, because the Court concludes that the Rescission Notice was untimely and thus
ineffective, it need not resolve these admissibility issues.

6

As previously described, BANA is the successor by merger to Countrywide. However,
according to Durand, Countrywide was first bought by BAC Home Loans Service, LP
(“BAC”) and BAC was subsequently purchased by BANA. (Am. Compl. at ¶ 4.) In
considering Durand’s negligent misrepresentations claim, the Court assumes that the
representations of Countrywide and BAC are attributable to BANA.

7

The Court notes that Durand presents his claim as one for negligent misrepresentations,
but his allegations that BANA knew that the Mortgage was the result of a fraud, yet
failed to take any remedial action and instead actively concealed this fact, sound in fraud.
(See Am. Compl. at ¶¶ 83-84.) To the extent Durand alleges BANA committed fraud, his
claim fails because he has not produced any evidence of fraudulent intent. See supra Part
II.C.1.
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Valspar Refinish, Inc. v. Gaylord’s, Inc., 764 N.W.2d 359, 369 (Minn. 2009). However,
unfulfilled promises or statements anticipating future events cannot serve as the basis for
a negligent misrepresentation claim. Trooien v. Mansour, 608 F.3d 1020, 1030 (8th Cir.
2010); Labrant v. Mortg. Elec. Registration Sys., Inc., 870 F. Supp. 2d 671, 680 (D.
Minn. 2012).
Count V fails as a matter of law on several grounds. First, Durand offers no
evidence, other than his bald assertions, that BANA actually represented that it would
investigate the purported fraud, or that it failed to undertake such an investigation.
Second—assuming BANA represented that it would investigate—Durand could not
legally rely on this representation by abandoning his own investigation, or assuming that
the Mortgage was rescinded or otherwise void. See Labrant, 870 F. Supp. 2d at 681
(holding that the plaintiffs did not reasonably rely on the defendant’s purported
representation—that it would modify their mortgage—when they ceased making
payments on the mortgage altogether). Third, Durand’s misrepresentation claim hinges
on BANA’s alleged failure to fulfill its promise to investigate the purported fraud, but
unfulfilled promises (or opinions about future events) cannot sustain a claim for negligent
misrepresentation. See Trooien, 608 F.3d at 1030.
F. Fraud by RCS—Count VI
Count VI alleges that RCS committed fraud by inducing Kim and Durand to
reduce the redemption period for the Property with the promise that RCS would

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“entertain” their application to modify the Mortgage, but that RCS “never intended to
entertain” that application. (See Am. Compl. at ¶¶ 88-93.)
Again, to prevail on a claim of common law fraud, a plaintiff must prove:
(1) a false representation of a past or existing material fact susceptible of
knowledge; (2) made with knowledge of the falsity of the representation or
made without knowing whether it was true or false; (3) with the intention to
induce action in reliance thereon; (4) that the representation caused action
in reliance thereon; and (5) pecuniary damages as a result of the reliance.
Fraud may also be established by concealment of the truth.
U.S. Bank, 802 N.W.2d at 373. Moreover, “under Minnesota law . . . a representation or
expectation of future events is not sufficient to support an action for fraud simply because
the represented act or event did or did not take place.” Exeter Bancorporation, Inc. v.
Kemper Sec. Group, Inc., 58 F.3d 1306, 1312 (8th Cir.1995) (quotation marks and
citation omitted).
It is true that, despite this limitation, a misrepresentation of a present
intention, for example in a promise to do something prospectively, could
amount to a fraud. However, the failure to carry out such a promise, with
nothing more, does not constitute fraud; there must be affirmative evidence
that, when the maker made the promise, he or she had no intention of
keeping it.
Id. at 1312.
Again, Durand’s fraud claim suffers from several flaws.

First, there is no

evidence, other than his bald assertions, that there was a quid pro quo agreement between
Kim, Durand, and RCS that if Kim and Durand postponed the foreclosure sale—thereby
reducing the redemption period for the Property when it was sold at auction—RCS would
“entertain” their application for a mortgage modification. Instead, the evidence shows
that Durand contacted RCS to request a modification application, which RCS provided,
22

but that Durand failed to properly complete the paperwork. See supra Part I.D. This
evidence also highlights the second flaw in Durand’s claim—that there is no evidence of
a false representation by RCS. Rather, the evidence shows RCS did exactly as Durand
requested (or, if you accept Durand’s account, it promised to do) by providing him with a
mortgage modification application and considering that application when it was
submitted.
Third, as with Durand’s fraud claim against Countrywide, there is no evidence of
any fraudulent intent on the part of RCS. See supra Part II.C.1. Fourth, assuming that
RCS promised to entertain the mortgage modification application, but in fact did not
consider it, there is no evidence that RCS did not intend to keep that promise when it was
made. See Exeter Bancorporation, 58 F.3d at 1312-13 (upholding the dismissal of
plaintiff’s fraud claim based on an alleged promise where the plaintiff failed to present
any affirmative evidence that at the time the promise was made, the defendant did not
intend to honor it). Finally, to the extent Durand argues that RCS fraudulently
represented that it would in fact modify the Mortgage, his claim is barred by the statute of
frauds. See Minn. Stat. § 513.33 (requiring that all credit agreements, including mortgage
modifications, be in writing); Myrlie v. Countrywide Bank, 775 F. Supp. 2d 1100, 1108 (D.
Minn. 2011) (promissory estoppel claim related to oral loan modification barred by Minn.
Stat. § 513.33); Tharaldson v. Ocwen Loan Servicing, LLC, 840 F. Supp. 2d 1156, 1162 (D.
Minn. 2011) (holding that “[a] loan modification constitutes a credit agreement” and
enforcement of an oral loan modification was thus barred by Minn. Stat. § 513.33); Labrant,

23

870 F. Supp. 2d at 678 (finding that a lender was not equitably estopped from invoking
Minn. Stat. § 513.33 and dismissing a claim to enforce an alleged oral loan modification).
III.

CONCLUSION
The Court is sympathetic to Mr. Durand’s situation. Family disputes, especially

conflicts between siblings that surround the aging and subsequent passing of a beloved
parent, are never easy. However, these conflicts do not necessarily give rise to legal
claims, especially against third parties. For the reasons stated above, Durand’s claims
against Defendants fail as a matter of law.
IV.

ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS

HEREBY ORDERED THAT:
1.

Defendants’ Joint Motion for Summary Judgment [Doc. No. 69] is
GRANTED.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: May 30, 2017

s/ Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge

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